Important Point:
Complaint at her instance under the N.I. Act, however cannot be maintainable, she having no locus standi to be a complainant under the N.I. Act.
A person in order to become a holder in due course within the meaning of Section 9 of the Act must be in possession of a promissory note, bill of exchange or cheque, as is in the present case; at the same time, mere becoming possessor of the cheque etc., would not suffice. A person to the possessor of the instrument has to be for a consideration. It is indispensable ingredient for being clothed with the legal capacity of "holder in due course" is that the person in possession of the instrument, must have been in the possession for some consideration.

N.V. Anjaria, J.

1. Rule. Learned Additional Public Prosecutor Mr. L.B. Dabhi waives service of Rule on behalf of the first respondent-State of Gujarat and learned advocate Mr. S.R. Sharma waives Rule for the second respondent.

2. What is prayed in this petition filed under Section 482 of the Code of Criminal Procedure, 1973 is for quashment of Criminal Case No. 5327 of 2012 before learned Additional Chief Judicial Magistrate, Palanpur, and the consequential process dated 12th October, 2012 issued by the learned Magistrate. They are the proceedings pursuant to a complaint filed under Section 138 of the Negotiable Instruments Act, 1882.

2.1 Whether the wife by virtue of her status as a wife of the payee of the cheque can be said to be "a holder in due course"; whether she can be a competent complainant to lodge complaint under Section 138 of the Negotiable Instruments Act, 1882; who can be said to be the "holder in due course"-are the questions arising for considerations.

3. The facts are few. The petitioner herein and one late Rajeshkumar Motibhai Thakkar are the brothers. The said Rajeshkumar happens to be the husband of respondent No. 2 herein. The two brothers took up a contract to work for one Relcon Infra Project. For the said purpose, a joint bank account was got opened with the Indian Bank, Palanpur Branch in the name of petitioner-Jyotindra Thakkar as well as his brother Rajeshkumar Thakkar. It is the case that there was an understanding between two brothers that the labour work for the said company Relcon would be carried out in the name of the petitioner, since Rajeshkumar was the employee of said Relcon. It is the further case that earnings from the labour work was to be deposited in the joint bank account.

3.1 The petitioner gave a post dated cheque dated 14th February, 2012 in the month of December, 2011 named in favour of the brother. The brother of the petitioner Rajeshkumar died on 18th March, 2012. Respondent No. 2-wife of Rajeshkumar, deposited the aforementioned cheque dated 14th February, 2012 which was in the name of said deceased Rajeshkumar. The deposit of the cheque was two months after the date of death of Rajeshkumar and prior to the expiry of the statutory validity period of the cheque. The Bank intimated on 11th May, 2012 that the said cheque had bounced on account of insufficiency of funds. The said intimation was in the name of Rajeshkumar since the Bank was not informed about the death of Rajeshkumar.

3.2 Respondent No. 2 having issued a notice dated 08th June, 2012 through her advocate and having received reply from the petitioner dated 23rd June, 2012, filed a complaint under Section 138 of the N.I. Act; which came to be numbered as Criminal Case No. 5327 of 2012 with learned Additional Chief Judicial Magistrate, Palanpur, learned Magistrate issued process under Section 204 of Cr.P.C., 1973 as well as summons under Section 138 of the N.I. Act. It appears that the petitioner preferred an application before the learned Magistrate praying for recall of the summons, which was rejected on the ground that process once issued under Section 204, Cr.P.C., there was no provision for recalling of the process. This led the petitioner to invoke Section 482, Cr.P.C. for quashing the criminal case.

3.3 The complainant was wife of said Rajeshkumar. She was holding the cheque dated 14th February, 2012 after death of her husband. Subsequent to the occurrence of the death, respondent No. 2 deposited the cheque in the bank account which was bounced and the wife became complainant under Section 138 of the N.I. Act, placing the whole facts in a nutshell.

3.4 The centripetal point is whether the wife could be a complainant in law under Section 138, N.I. Act and whether complaint at her hands was maintainable; whether respondent No. 2 could be characterised in eye of law as "a holder in due course" within the meaning of Section 9 of the Act.

4. Learned advocate Mr. Hriday Buch for the petitioner submitted, by referri